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After a decade-long slog through Congress, the House and Senate have passed the nation’s first federal law prohibiting employers and insurance companies from discriminating against individuals on the basis of genetic information, a protection critics have called “a remedy in search of a problem.”

President Bush said he plans to sign the Genetic Information Non-Discrimination Act (GINA), which the Senate passed unanimously on April 24. The House of Representatives approved the measure on May 1 with just one dissenting vote.

GINA prohibits employers from firing, refusing to hire or otherwise discriminating against people on the basis of any genetic predisposition. The law makes it illegal for employers to ask or require employees or job applicants to provide genetic testing results, and prohibits them from trying to buy such information. Violators would be subject to compensatory and punitive damages.

The law also makes it illegal for insurance companies to base eligibility decisions or premiums on genetic information. Insurers would not be allowed to request, require or purchase genetic information, nor could they disclose any they may have somehow discovered.

Once signed, GINA will become the first new federal anti-discrimination law enacted since the ADA became law in 1990.

GINA duplicates many state laws

A coalition of business and HR groups that opposed the new law (including the Society for Human Resource Management) said it was largely unnecessary.

Similar genetic information nondiscrimination laws are already on the books in 34 states and the District of Columbia.

“Despite the fact that some 30 states have passed some form of a genetic anti-discrimination law, to date, there have been no reported cases,” said Jeffrey C. McGuiness, president of the HR Policy Association. “Meanwhile, GINA would not preempt these laws. What's more, the Equal Employment Opportunity Commission has, for over a decade, insisted that genetic discrimination is prohibited under the ADA.”

Testifying against the bill when it was introduced last year, attorney and coalition spokesperson Burt Fishman said, “There has yet to be a [genetic information discrimination] case, anywhere.”

ADA and HIPAA address genetic information

Fishman noted that, in addition to the ADA, the Health Insurance Portability and Accountability Act (HIPAA) has for years “banned the use of genetic information in group health insurance.” He said, “This is a remedy in search of a problem.”

Nonetheless, advocates say GINA may encourage those who believe they have suffered genetic information discrimination to come forward.

That has some employment law experts worried. The fear: that aggressive plaintiff’s attorneys will latch onto the law as another route to the courtroom. “You’re really looking at another potential cause of litigation,” Larry Lorber, a Washington, D.C., attorney told BusinessInsurance.com.

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